United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
T. Babcock, Judge
case is before me on Defendant United States Forest
Service's (the “Forest Service”) Motion for
Reconsideration [Doc # 40]. After consideration of the
motions, all related pleadings, and the case file, I grant
the Forest Service's motion.
Order dated May 23, 2017 [Doc # 39] (“the
Order”), I ruled on the parties' cross motions for
summary judgment in this Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, case. Among other
things, I entered summary judgment in favor of Plaintiff on
the issue of the applicability of Exemption 7(C) & (E) to
her FOIA request and held the issue of the applicability of
Exemption 6 in abeyance pending further review by the Forest
Service of its reliance on this exemption to withhold certain
materials from Plaintiff. I further ordered the Forest
Service to disclose all information redacted pursuant to FOIA
Exemption 7(E) to Plaintiff and to advise Plaintiff and the
Court of the results of its review of its redactions pursuant
to FOIA Exemption 6 within thirty (30) days of the date of
motion, the Forest Service asks me to reconsider the
applicability of Exemption 7 to Plaintiff's FOIA request
and submits supplemental evidence in support of this request.
Standard of Review
parties disagree about the appropriate standard of review for
the Forest Service's motion. Indeed, there is no
provision in the Federal Rules of Civil Procedure recognizing
a motion for reconsideration. Van Skiver v United
States, 952 F.2d 1241, 1243 (10th Cir. 1991). Rather,
depending on the posture of the case, a motion for
reconsideration may be treated as a motion to alter or amend
the judgment under Rule 59(e); a motion for relief from
judgment under Rule 60(b); or a request for use of the
Court's discretion to reopen orders that are short of a
final decree. Price v. Philpot, 420 F.3d 1158, 1167
n. 9 (10th Cir. 2005).
the Order held the issue of the applicability of Exemption 6
in abeyance, it is not a final order. See Fed. R.
Civ. P. 54(b) (“...order ...that adjudicates fewer than
all the claims ... may be revised at any time before the
entry of a judgment adjudicating all the claims....). The
Order may therefore be revised “as justice
requires.” Capitol Sprinkler Inspection, Inc. v.
Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011).
In determining whether justice requires revision of the
Order, I am mindful that the Forest Service submitted
extensive briefing on the parties' cross motions for
summary judgment for my consideration. See Servants of
The Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000) (motion for reconsideration not appropriate for
revisiting issues already addressed or advancing arguments
that could have been raised in prior briefing).
Exemption 7 allows a government agency to withhold
“records or information compiled for law enforcement
purposes” where the disclosure of such information
would result in one of six enumerated harms. 5 U.S.C. §
552(b)(7). The Forest Service bears the burden of
demonstrating that this Exemption applies, 5 U.S.C. §
552(a)(4)(B), and I concluded in the Order that it failed to
meet this burden on two fronts. First, I concluded that the
Forest Service failed to demonstrate that it operates as a
mixed-function agency that encompasses both administrative
and law enforcement functions. See Church of Scientology
of California v. U.S. Dep't of the Army, 611 F.2d
738, 748 (9th Cir. 1979), overruled on other grounds by
Animal Legal Defense Fund v. U.S. Food & Drug
Admin., 836 F.3d 987 (9th Cir. 2016) (the threshold
issue in any Exemption 7 claim is whether the agency involved
may properly be classified as an agency that may exercise a
law enforcement function). Second, I concluded that the
Forest Service failed to demonstrate that the withheld
information was compiled for adjudicative or enforcement
purposes. See Stern v. F.B.I., 737 F.2d 84, 88 (D.C.
Cir. 1984) (threshold test for applicability of Exemption 7
requires government to show that the records at issue were
compiled for adjudicative or enforcement purposes). By its
motion to reconsider, the Forest Service argues that both of
these prerequisites to the applicability of Exemption 7 are
satisfied in this case.
The Forest Service's Status as a “Law Enforcement
her cross motion for summary judgment and her response to the
Forest Service's motion for summary judgment, Plaintiff
argued that the Forest Service's Human Resources
Management (“HRM”) office was not a “law
enforcement agency.” See Doc #s 28, p. 28
& 30, p. 30. Plaintiff also asserted that the Forest
Service had proffered no evidence to establish that it had
express law enforcement authority or that its activities were
expressly related to its statutory mandate. See Doc
# 30, p.30 (citing Living Rivers, Inc. v. U.S. Bureau of
Reclamation, 272 F.Supp.2d 1313, 1318-20 (D. Utah
2003)). In response, the Forest Service did not provide any
evidence to show that it is a mixed-function agency with law
enforcement authority. Instead, the Forest Service argued
that “it is well-established that, regardless of the
nature or mission of the agency, personnel investigations of
government employees meet Exemption 7's threshold
requirement where they focus on specific and potentially
unlawful activity by particular employees of a civil or
criminal nature.” See Doc # 31, p. 32.
for the first time, the Forest Service provides evidence of
its overall law enforcement function. Without question, the
Forest Service had ample opportunity to present this evidence
in the briefs it filed in connection with the parties'
cross summary judgment motions. Nonetheless, in the interests
of justice, I cannot ignore clear evidence that the Forest
Service is a mixed-function agency that may invoke FOIA
Exemption 7 provided that the remaining prerequisites of this
exemption are satisfied. Moreover, it is these other
prerequisites that are at the crux of the parties dispute
regarding the Forest Service's reliance on Exemption 7.
The Purpose of the Subject ...